A friend tells a story of three lawyers, which I will modify slightly here.

Three friends all complete their undergraduate studies at Trinity Western University. All three decide to go to law school, however for personal reasons one goes to the University of Victoria, a second to the University of British Columbia and the third to TWU; all three accredited by the Federation of Law Societies of Canada and the B.C. Ministry of Advanced Education. Upon graduation they enter into practice together.

All three become involved in their communities and become chairs of different sections of the Canadian Bar Association. After ten years, one of the partners returns to Newfoundland for the funeral of his grandmother. The other two join him for support. While there, the partner decides he will need to move to St. John’s to help care for his parents. The second partner meets the woman of his dreams, who has recently been appointed to the Supreme Court of Newfoundland and Labrador so he too decides to make St. John’s his new home. The third partner doesn’t want to break up a supportive relationship and first rate law practice.

Interestingly, although all three have served well in law and community, and all three would be eligible for consideration for appointment to the Supreme Court of Canada, one is not eligible to practice law in Ontario or Nova Scotia only because of a decision made by the respective law societies of those provinces about the fully and properly accredited law school he attended.

Will the Law Society of Newfoundland and Labrador accept him?

The Law Society has already encouraged members and benchers to read the 2001, Supreme Court of Canada decision in Trinity Western University v. College of Teachers. In applying the principles of balancing rights the SCC determined in its 1994 decision in Dagenais v. CBC, the court concluded:

If TWU’s community standards could be sufficient in themselves to justify denying accreditation, it is difficult to see how the same logic would not result in the denial of accreditation to members of a particular church. (para. 33)

The diversity of Canadian society is partly reflected in the multiple religious organizations that mark the societal landscape and this diversity of views should be respected. (para. 33)

Consideration of human rights values in these circumstances encompasses consideration of the place of private institutions in our society and the reconciling of competing rights and values. Freedom of religion, conscience and association coexist with the right to be free of discrimination based on sexual orientation. (para. 34)

The Human Rights Act … (now the Human Rights Code)… provides … that a religious institution is not considered to breach the Act where it prefers adherents of its religious constituency. It cannot be reasonably concluded that private institutions are protected but that their graduates are de facto considered unworthy of fully participating in public activities. (para. 35)

There is nothing in the TWU Community Standards that indicates that graduates of TWU will not treat homosexuals fairly and respectfully. Indeed, the evidence to date is that graduates from the joint TWU-SFU teacher education program have become competent public school teachers, and there is no evidence before this Court of discriminatory conduct by any graduate. (para. 35)

Students attending TWU are free to adopt personal rules of conduct based on their religious beliefs provided they do not interfere with the rights of others. Their freedom of religion is not accommodated if the consequence of its exercise is the denial of the right of full participation in society. (para. 35)

There is, in fact, no evidence to suggest that these conclusions of the court have borne out to be false or that they would not be equally applicable in the instance of a law school.

The Court states at paragraph 36:

Instead, the proper place to draw the line in cases like the one at bar is generally between belief and conduct. The freedom to hold beliefs is broader than the freedom to act on them. Absent concrete evidence that training teachers at TWU fosters discrimination in the public schools of B.C., the freedom of individuals to adhere to certain religious beliefs while at TWU should be respected. The BCCT, rightfully, does not require public universities with teacher education programs to screen out applicants who hold sexist, racist or homophobic beliefs. For better or for worse, tolerance of divergent beliefs is a hallmark of a democratic society.

Which, in the current context, might be considered as:

Instead, the proper place to draw the line in cases like the one at bar is generally between belief and conduct. The freedom to hold beliefs is broader than the freedom to act on them. Absent concrete evidence that training lawyers at TWU fosters discrimination in the practice of law (in accordance with the Code of Professional Conduct), the freedom of individuals to adhere to certain religious beliefs while at TWU should be respected. The LSNL, rightfully, does not require public universities with law school programs to screen out applicants who hold sexist, racist or homophobic (or anti-religious) beliefs. For better or for worse, tolerance of divergent beliefs is a hallmark of a democratic society.

In the 2004 SCC decision in Reference re Same-Sex Marriage, the Court reinforced the principles expressed in Dagenais and Trinity Western, noting:

52 The right to same-sex marriage conferred by the Proposed Act may conflict with the right to freedom of religion if the Act becomes law, as suggested by the hypothetical scenarios presented by several interveners. However, the jurisprudence confirms that many if not all such conflicts will be resolved within the Charter, by the delineation of rights prescribed by the cases relating to s. 2(a). Conflicts of rights do not imply conflict with the Charter; rather the resolution of such conflicts generally occurs within the ambit of the Charter itself by way of internal balancing and delineation.
53 The protection of freedom of religion afforded by s. 2(a) of the Charter is broad and jealously guarded in our Charter jurisprudence. We note that should impermissible conflicts occur, the provision at issue will by definition fail the justification test under s. 1 of the Charter and will be of no force or effect under s. 52 of the Constitution Act, 1982. In this case the conflict will cease to exist.

Taking this advice from the Court, Parliament spelled out in the Civil Marriage Act that there should not be discrimination against an individual or group on the basis of holding an opinion on marriage that differs from the legal definition in the Act, including opinion founded in religious belief. The preamble includes:

WHEREAS nothing in this Act affects the guarantee of freedom of conscience and religion and, in particular, the freedom of members of religious groups to hold and declare their religious beliefs and the freedom of officials of religious groups to refuse to perform marriages that are not in accordance with their religious beliefs;

WHEREAS it is not against the public interest to hold and publicly express diverse views on marriage;

And, the body of the Act further states:

3.1 For greater certainty, no person or organization shall be deprived of any benefit, or be subject to any obligation or sanction, under any law of the Parliament of Canada solely by reason of their exercise, in respect of marriage between persons of the same sex, of the freedom of conscience and religion guaranteed under the Canadian Charter of Rights and Freedoms or the expression of their beliefs in respect of marriage as the union of a man and woman to the exclusion of all others based on that guaranteed freedom.

I encourage the Law Society of Newfoundland and Labrador to hold open its bar to those properly equipped and accredited graduates of all law schools and let their practice of the law be determinative of whether or not they belong elbow to elbow with those currently practicing who do or do not hold similar convictions in regard to marriage within the religious community.

When I arrived at the old UBC Law building in 1981 the first thing I saw at the front doors was the phrase “fiat justitia ruat caelum” – “let justice be done though the heavens may fall.” For those of us who are still at least a little idealistic, those words continue to ring with challenge and inspiration.

Another application challenge for law and life is found in Micah 6:8 which reads, “He has shown you, O mortal, what is good. And what does the LORD require of you? To act justly and to love mercy and to walk humbly with your God.”

There is another axiom that is considered crucial to the practice of law. It states, “not only must justice be done, it must also be seen to be done.”

A few days ago 652 lawyers sent a letter to Prime Minister Stephen Harper stating that they “deplore the unprecedented and baseless insinuation by the Prime Minister of Canada that the Chief Justice engaged in improper conduct.”

The situation may well be unprecedented. However, I disagree with the judgment of the 652 for two reasons: the facts and the law.

The facts, as presented by the Chief Justice’s executive legal officer in a press release are: the Chief Justice contacted the Minister of Justice to advise of a potential concern if a judge from the Federal Court was appointed to the open Quebec seat on the Court; and, the Chief Justice contacted the Prime Minister’s Chief of Staff to express the same opinion. It is not unexpected that the Chief Justice offer her advice to the Parliamentary committee considering candidates for the Court. It is unusual that she would contact the Minister of Justice or the Prime Minister’s Office.

Additional facts, as presented by the Minister of Justice and PMO are: the Chief Justice asked to speak with the Prime Minister, which he declined; and, the Government sought the opinions of former Supreme Court Justices Ian Binnie and Louise Charron, as well as the opinion of Canada’s most acclaimed constitutional law expert Professor Peter Hogg, who literally wrote the book. With supporting advice from these and other constitutional law experts the appointment was made.

I agree with one statement in the letter. “An independent judiciary is vital to the health of any democracy and a foundational tenet of Canada’s constitutional order and the rule of law.”

Here’s a simple question for my esteemed colleagues in the law. What advice would you offer a judge intending to decide on a case if you knew he had offered preliminary advice on the case that was now before his court? The answer is found in the simple maxim, “not only must justice be done, it must also be seen to be done,” a principle which has been repeatedly reinforced in decisions of the courts at every level. It is why judges have, and exercise, the option to recuse themselves from sitting on cases in which they have, or may be perceived to have, a conflict of interest.

Justice may have been done in the decision concerning the appointment of Justice Nadon – although, recently retired Justices Binnie and Charron would apparently side with Justice Moldaver in disagreeing with the Chief Justice’s decision in the case – but are there questions about whether justice was seen to have been done?

Only the seven judges who met in the boardroom of the Supreme Court of Canada will know how much of a role the Chief Justice played in the decision of the Court, or the written reasons of the majority. Did they know Chief Justice McLachlin had expressed an opinion on the matter prior to the appointment of Justice Nadon? To the committee? To the Minister of Justice? To the PMO? Would the hearing and decision have turned out differently without her involvement?

It’s too late for the Chief Justice to recuse herself from the case. However, her participation in hearing the case and in writing the decision of the majority of the Court on the very issue on which her executive legal officer indicates she initiated contact prior to the appointment suggests that it would likely have been the wiser course of action to have not participated.

I attribute the best of intentions to Chief Justice McLachlin, and believe she is a woman of integrity; however, her presence on the bench for this case was neither wise nor necessary.

There are times when each of us believes we are doing the right thing; and, stand steadfastly by that conviction even in light of contradictory opinion from others or the benefit of hindsight. That reminds me of a decision in a case from centuries past that proffered a maxim which may also be applicable in this situation, “Let him who is without sin among you be the first to throw a stone.” (Gospel of John 8:7)